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[casi] Bush & Co. Fear Prosecution in the International Criminal Court

Criminalization of the State:
Bush & Co. Fear Prosecution in the International Criminal Court
by Marjorie Cohn   25 September 2003
The URL of this article is:


  Overcoming Impunity with the International Criminal Court
  Non-governmental organizations and individuals from sixty-six different
countries have filed 499 "communications" - or complaints - with the
International Criminal Court (ICC), between July 2002 and July 2003. Many of
them urge the ICC to investigate the United States conduct in the war on
Iraq. The primary charge is that the U.S. committed an act of aggression
against Iraq. The ICC has jurisdiction to punish the crime of aggression.
However, this crime remains undefined in the ICC's statute due to disputes
among the states parties about how to define it.

  The United States is not a party to the ICC treaty. The Bush
administration has vigorously opposed it, for fear that U.S. military
officials and personnel could be subject to "politically-motivated"
prosecutions for war crimes.

  In an unprecedented move last year, George W. Bush removed Bill Clinton's
signature from the treaty. A few months later, Bush signed into law the
American Serviceman's Protection Act, which restricts U.S. cooperation with
the ICC and prohibits military assistance to states parties to the treaty
unless they sign bilateral immunity agreements with the U.S. States which
sign these "Article 98" agreements - referring to the section of the ICC
statute that addresses treaties between countries - pledge not to hand over
U.S. nationals to the ICC. The United States has reportedly extracted these
agreements from 60 countries - primarily small nations, or fragile
democracies with weak economies. And the U.S. has withdrawn military aid
from 35 nations that refused to be coerced into signing Article 98

  The U.S. has also demanded express immunity from ICC prosecution for
American nationals. This demand delayed the passage of several peacekeeping
resolutions in the Security Council. But in 2002, the Security Council
capitulated when it unanimously passed Resolution 1422, which called for one
year of immunity for peacekeepers from countries not party to the ICC
statute, and provided that immunity could be renewed in subsequent years.
The resolution was renewed in June. But this time, the U.S. was unable to
achieve unanimity. France, Germany and Syria abstained from the vote.

  Ninety-one countries have signed on as parties to the ICC treaty. So why
has the Bush administration resisted it so vehemently? Bush's handlers were
likely prescient about how the world would react to the United States'
illegal invasion of Iraq, which was not executed with Security Council
approval or in lawful self-defense. They evidently knew they and their boss
might be vulnerable to prosecutions for the unlawful killing of thousands of
Iraqi civilians, the destruction of the civilian infrastructure, and the use
of weapons of mass destruction - cluster bombs and depleted uranium - by
"coalition forces."

  A Preemptive War is a War of Aggression

  The United States has sought to ensure the ICC's legal processes do not
jeopardize its role as global superpower by subjecting U.S. leaders to
prosecution. It has consistently resisted definitions and jurisdictional
provisions that may challenge U.S. impunity for wars of aggression.

  Many ICC parties favor a definition of aggression set out in 1974 in
General Assembly Resolution 3314, passed in the wake of Vietnam: "Aggression
is the use of armed force by a state against the sovereignty, territorial
integrity or political independence of another state, or in any other manner
inconsistent with the Charter of the United Nations, as set out in this

  Bush's new doctrine of "preemptive war" is a license to prosecute wars of
aggression. It runs directly counter to the United Nations Charter's
prohibition on the use of armed force except in self-defense or when
authorized by the Security Council. A preemptive war is a war of aggression.
"Operation Iraqi Freedom" falls squarely into this category.

  More than 50 years ago, Associate United States Supreme Court Justice
Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, wrote: "No
political or economic situation can justify" the crime of aggression. He
added: "If certain acts in violation of treaties are crimes they are crimes
whether the United States does them or whether Germany does them, and we are
not prepared to lay down a rule of criminal conduct against others which we
would not be willing to have invoked against us." An impartial international
criminal tribunal is necessary to prevent "victor's justice," where only the
vanquished are subject to prosecution.

  Universal Jurisdiction for International Crimes

  Under the treaty, the ICC can take jurisdiction over a national of even a
non-party state if he or she commits a crime in a state party's territory.
The U.S. vehemently objects to this. But it's nothing new. Under
well-established principles of international law, the core crimes prosecuted
in the ICC - genocide, war crimes, crimes against humanity, and the crime of
aggression - are crimes of universal jurisdiction.

  That means that an alleged perpetrator can - and always could - be
arrested anywhere. Indeed, the United States itself has asserted
jurisdiction over foreign nationals in anti-terrorism, anti-narcotic
trafficking, torture and war crimes cases. Even Resolution 1422 notes that
states not party to the ICC statute "will continue to fulfill their
responsibilities in their national jurisdiction in relation to international

  However, the U.S. has not fulfilled its responsibilities to seek justice
for international crimes. It has refused to extradite four terrorists -
right-wing Cuban exiles trained by the CIA - who were convicted more than 20
years ago in Venezuela for blowing up a Cuban airliner in 1976. The U.S.
similarly refuses to extradite John Hull, an American CIA operative indicted
in Costa Rica for the 1984 bombing of a press conference which killed five
journalists in a Nicaraguan border town. It has also refused to extradite
former military officer Emmanuel Constant for trial in Haiti. Constant, who
worked closely with the CIA, is believed to be responsible for the murder of
more than 5000 people under the Haitian dictatorship in the early 1990s.

  The ICC statute adds a special safeguard to the venerable principle of
universal jurisdiction. It promises the ICC will only prosecute when the
alleged perpetrator's native country cannot, or will not, prosecute one of
its nationals. The U.S. should not then fear ICC prosecution, especially in
light of the Article 98 agreements it coerced - and continues to coerce -
from a multitude of countries. Unfortunately, however, these agreements
contain no guarantee that an American national accused of an international
crime would be tried if handed over to the U.S.

  In June, Belgium indicted Bush, Tony Blair, Paul Wolfowitz, John Ashcroft,
and Condoleezza Rice for war crimes during the U.S.-led military campaign in
Afghanistan, which predated the effective date of the ICC. The indictment
was issued under Belgium's universal jurisdiction law, which gave Belgian
courts the right to judge anyone accused of war crimes, crimes against
humanity or genocide, regardless of where the crimes were committed. Four
Rwandans have been convicted in 2001 under Belgium's law for their
participation in the 1994 genocide which left more than one million dead.

  The government of Belgium, fearing a backlash, decided to refer the cases
against Blair, Bush and the others to London and Washington, making trials
unlikely. Even so, Donald Rumsfeld threatened to move NATO out of Brussels
unless Belgium changed its universal jurisdiction law. Belgium capitulated,
and its Court of Cassation has asked for the dismissal of the war crimes

  Belgium isn't alone in indicting Bush and Blair for war crimes. In July,
Greece's Athens Bar Association filed a complaint in the ICC against the two
for crimes against humanity and war crimes, this time in connection with
their war on Iraq. "Operation Iraqi Freedom" began after July 2002, the
effective date of the ICC.

  The Sept. 11, 2001 terrorist attacks occurred before the ICC went into
effect. Two years later, a Spanish judge charged Osama bin Laden and nine
alleged Al Qaeda members with terrorism and murder under the principle of
universal jurisdiction.

  U.S. Undermines War Against Terrorism
  Luis Moreno-Ocampo, the Argentine Chief Prosecutor of the ICC, has decided
to begin the work of the Court by investigating possible genocide, war
crimes, and crimes against humanity for the recruitment and use of children
as soldiers and sex slaves in the Democratic Republic of Congo.
Moreno-Ocampo's selection of the Congo for his maiden investigation was made
partly with an eye to the credibility of the ICC because, he says, "the
Congo was a clear case."

  But, John Shattuck, the former U.S. Assistant Secretary of State for
Democracy, Human Rights and Labor, wrote in the Washington Post in September
that the United States has "so far played a passive and sometimes negative
role in the region." Just two days after the Security Council adopted a
resolution on July 28 which imposed an embargo on "the direct or indirect
supply" of arms or assistance to "armed groups and militias operating in the
territory," the U.S. lifted its own embargo on weapons sales to Rwanda,
which has armed its clients in eastern Congo.

  Moreno-Ocampo, who has described the genocide in Congo as the "most
important case since the Second World War," plans to investigate businesses
in 29 countries, including the United States, suspected of financing ethnic
violence in Congo.

  Ironically the Chief Prosecutor, an attorney with extensive experience
investigating atrocities and prosecuting officials in Argentina, says that
the United States' refusal to work with the ICC will undermine the
International Criminal Court's role in the U.S. efforts to fight terrorism.


Marjorie Cohn, a professor of law at Thomas Jefferson School of Law in San
Diego, is executive vice president of the National Lawyers Guild.© Copyright
Marjorie Cohn, 2003  For fair use only/ pour usage équitable seulement .

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